Libertatem Magazine

Once an Order Is Passed, The Executive Magistrate Doesn’t Have Any Power to Re-Open and Review His Order and No Such Power Is Given Under CRPC: Madras High Court

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A Criminal Revision Case was filed under Section 397 r/w Section 401 of CrPC to call for entire records on the files of the Executive Magistrate and Deputy Commissioner of Police and set aside the order. 

Facts of the case

The second respondent had registered a case against the petitioner under Section 110 of CrPC. The petitioner appeared before the 1st respondent on receipt of summons and executed a bond under Section 110. During the bond period, the 2nd respondent registered another case against the petitioner stating that the petitioner had violated the earlier proceedings. The petitioner was involved in another case for the offence under Section 147, 148, 294(b), 341, 427, 307 and 506(ii) of IPC and was arrested and remanded to judicial custody. 

After the inquiry, 1st respondent without allowing the petitioner, initiated proceedings under Section 122(1)(b) of CrPC and also cancelled the bail bond executed under Section 110. The petitioner was directed to undergo imprisonment for the remaining bond period. 

The 1st Respondent suo motu re-opened his order and conducted a fresh enquiry and passed an impugned order. The petitioner thus filed this challenging the same impugned order.  

Arguments by the Parties

The petitioner submitted that the 1st respondent had no power to re-open and review his own order. It was also submitted that the 1st respondent even though conducted the enquiry, had failed to appreciate the evidence elicited during the cross-examination in favour of the petitioner and passed the impugned order. Thus, the orders passed by 1st respondent were liable to be set aside. 

However, on the other side respondents had contended that the petitioner had also been involved in other cases and sufficient opportunity was given to the petitioner. To comply with the directions, the 1st respondent had re-opened the proceedings and passed the impugned order. Thus there was no merit in this Criminal Revision Case and was liable to be dismissed.

 Court’s Observations

The court had observed that while the petitioner was in custody, on Prisoner’s Transit Warrant, he was produced before the 1st respondent and without providing sufficient opportunity to the petitioner to engage a counsel to defend the case, passed the order. Subsequently, the 1st respondent suo motu recalled the order and sufficient opportunity was given to the petitioner to engage a counsel to defend the case and proceedings under Section 122(1)(b) of CrPC had been initiated and impugned order was passed. 

It was also observed that as pointed out by petitioners even on merits when the complaint was recalled and during the cross-examination, the de facto complainant had stoutly deposed that he had not preferred any complaint against the petitioner. However, the executive magistrate without considering evidence of the de facto complainant passed the impugned order. Once the order was passed, the executive magistrate didn’t have any power to re-open and review his order and no such power was given under CrPC. 

Court’s Decision

The court held that the impugned order passed by the Executive Magistrate was liable to be set aside and the Criminal Revision Case was allowed. The court directed the Superintendent of Police, Central Prison to release the petitioner if he was not required in any other case. 

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